CITATION: Her Majesty the Queen v. Richard Scott Gamble and David Paul Gregory, 2016 ONSC 6343
COURT FILE NO.: CR72/15
DATE: 2016 October 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Richard Scott Gamble and David Paul Gregory
John Dibski, for the Crown
Antin Jaremchuk, for Mr. Gamble
John Renwick, for Mr. Gregory
HEARD: October 11, 2016
The Honourable Justice R.J. Harper
sentencing (given orally)
The Offences
[1] David Paul Gregory (Gregory) was convicted of the following offence:
- On October 10, 2014, he possessed a 2004 Chevrolet Silverado, of a value exceeding $5,000.00 knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to s. 345 (1)(a) of the Criminal Code of Canada (“CCC”).
[2] Gamble was convicted of the following offences:
On October 10, 2014, in the City of Brantford, did by criminal negligence in the operation of a motor vehicle cause the death of Ashley Lerno contrary to s. 220 (b) of the CCC.
On October 10, 2014, at the County of Brant, having care and control of a motor vehicle, that being a Chevrolet Truck that was involved in an accident with another motor vehicle, operated by Ashley Lerno at Gilkison Road and Colborne Street, with the intent to escape civil or criminal liability, he failed to stop his motor vehicle and give his name and address and offer assistance to Ashley Lerno knowing that another person involved in the accident required assistance or was dead, contrary to s. 252 (1.3) of the CCC.
On October 10, 2014, at the County of Brant, he did operate a motor vehicle, a green Chevrolet truck while disqualified from doing so by reason of an order of the court pursuant to s. 259 (1) of the CCC, contrary to s. 259 (4) of the CCC.
On October 10, 2014, at the County of Brant, while operating a motor vehicle and being pursued by a peace officer operating a motor vehicle he did in order to evade the peace officer fail, without reasonable excuse, to stop his motor vehicle as soon as was reasonable in the circumstances and did operate the said motor vehicle in a manner dangerous to the public and thereby causing the death of Ashley Lerno contrary to s. 249.1(3) of the CCC.
The Facts
[3] David Gregory obtained the Chevrolet pickup by the commission of an indictable offence. He was given this vehicle by a Mr. Tatlock. When Mr. Tatlock told him that he was afraid that if he sold his truck he would not get the money that he paid for it, David Gregory told him about a scheme referred to as “burn and earn”. The essence of the scheme was that he would give his truck to MR. Gregory and Mr. Gregory would get rid of the truck. Mr. Tatlock would then report to his insurance company that his truck was stolen. Mr. Tatlock gave his truck to David Gregory and Mr. Tatlock did report to his insurance company that his truck was stolen. Upon this false report, Mr. Tatlock was paid $7,000 by his insurance company. It is this same Chevrolet pickup truck that was driven by Richard Gamble on October 10, 2014 with David Gregory as a passenger that collided with a car driven by 18 year old Ashley Lerno that caused her death.
The Fleeing Vehicle
[4] On the evening of October 10, 2014, Richard Gamble was the driver of this green Chevrolet pickup truck. David Gregory was the only passenger in that vehicle. Richard Gamble approached a ride program at the intersection of Concession 8 and Maple Ave in Brant County at approximately 11:20 pm. He turned the truck around in order to avoid a Ride Program that had been set up by the OPP at that intersection that evening.
[5] Two cruisers driven by OPP officers pursued the truck driven by Richard Gamble in order to stop the truck. The police cruisers’ flashing lights and sirens were engaged. Normally that would cause the vehicle being pursued to stop. Richard Gamble did not stop. Instead he attempted to avoid police by fleeing at extremely high speeds over rural roads and eventually into residential areas. During the pursuit route, Mr Gamble attempted to run one of the police vehicles off the road. He rammed one of the cruisers and then proceeded at high rates of speed, not only into residential roadways, but also on to a residences property, into and through a park area and proceeded the wrong way on a one way street.
[6] The flight by the truck driven by Richard Gamble took his vehicle into an intersection of Colborne St. and Gilkison in the City of Brantford. He proceeded through a red light at a high speed. He collided with a vehicle driven by Ashley Lorne. Ashly Lorne died as a result of the injuries she sustained in that collision. Her passenger Alyssa Cutler sustained injuries but survived.
[7] Evidence at trial established that the speeds of the truck driven by Richard Gamble while attempted to evade police ranged from 119 km/h to 160 km/h. The speed limit in this area is 80 km/h.
[8] When the fleeing truck was driven in the residential areas the speeds were also extremely high. At the point of collision, the truck was proceeding at approximately 80 km/h in a 40km/h zone. The speed of the truck while proceeding through the red light at the intersection of Colborne and Gilkison was approximately 80 km/h.
The Occupants of the Fleeing Vehicle
[9] David Gregory exited the overturned truck dazed and stumbling. He was arrested immediately at gun point by Officer Grubb of the OPP.
[10] Richard Gamble exited the truck and fled the scene. He was later arrested in a nearby back yard by members of the Brantford Police Canine unit.
Victim Impact Statements
[11] We have often heard the expression that no parent should have to bury their child. Ashley Lerno’s mother has sadly had to live that.
[12] Joanne Lerno gave her victim impact statement in court.
[13] She explained that she and her daughter "went through a lot together and that "part of her died when Ashley died." Joanne Lerno explained that following the accident her daughter was kept on life support for a period of one week at which time a brain exam was performed and it was determined that her daughter was clinically "brain dead". She expressed that she not only sat with her daughter for the one week period but watched her daughter take her last breath, watched as her daughter was removed from life support, was pronounced dead and then was re-attached to a machine to allow for her organs to be harvested. Joanne Lerno reported that the harvested organs saved the lives of five individuals in addition to the eyesight of two other individuals. She stated "I lost my daughter, I lost my best friend, I lost a part of me." Joanne Lerno expressed that she is very upset that no one has taken responsibility for the death of her daughter and added that she consistently relives the incident.
[14] Ashley’s brother and close friends also gave written impact statements.
[15] Alyssa Cutler was Ashley’s close friend. She was a passenger in the car on that tragic night in October of 2014. She was injured but survived. She has been dealing with her injuries but the most significant injury she and all those close to Ashley are dealing with is the loss of someone who was so deeply loved.
[16] They all lost a part of them. The pain of that loss will always be with them.
[17] I learned from the victim impact statements that Ashley was a beautiful caring young person who had her whole life ahead of her. Her beauty and caring will also live on within her loved ones. It is my hope that will give comfort to her family and friends. As her mother told us, she gave parts of her that allowed others to live and to see. It is my hope that that memory overtakes the sadness in their hearts.
Principles of Sentencing
[18] The Supreme Court of Canada has given guidance to a judge’s difficult task when sentencing someone convicted of a crime.
[19] In R. v. Nasogaluak, [2010] 1 SCR 206, 2010 SCC 6, the court stated commencing at para 40:
[40]The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. Thus, whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality. Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider “all available sanctions other than imprisonment that are reasonable in the circumstances”, with particular attention paid to the circumstances of aboriginal offenders.
[41]It is clear from these provisions that the principle of proportionality is central to the sentencing process (R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12). This emphasis was not borne of the 1996 amendments to the Code but, rather, reflects its long history as a guiding principle in sentencing (e.g. R. v. Wilmott (1966), 1966 CanLII 222 (ON CA), 58 D.L.R. (2d) 33 (Ont. C.A.)). It has a constitutional dimension, in that s. 12 of the Charter forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency. But what does proportionality mean in the context of sentencing?
[42]For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused (R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicial and social censure (J. V. Roberts and D. P. Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.
[43]The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case (R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; M. (C.A.); R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.)). No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.
[44]The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.
[45]The discretion of a sentencing judge is also constrained by statute, not only through the general sentencing principles and objectives enshrined in ss. 718 to 718.2 articulated above but also through the restricted availability of certain sanctions in the Code
[20] The Supreme Court of Canada dealt with sentencing objectives and principles in R. v. Lacasse,2015 SCC 64, [2015] 3 S.C.R. 1089. The court reminded of the great significance the sentencing process is:
[1] Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 et seq. of the Criminal Code, R.S.C. 1985, c. C‑46, and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.
[2] For this purpose, the courts have developed tools over the years to ensure that similar sentences are imposed on similar offenders for similar offences committed in similar circumstances — the principle of parity of sentences — and that sentences are proportionate by guiding the exercise of that discretion, and to prevent any substantial and marked disparities in the sentences imposed on offenders for similar crimes committed in similar circumstances. For example, in Quebec and other provinces, the courts have adopted a system of sentencing ranges and categories designed to achieve these objectives.
[3] The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives.
[21] Although a court can, in pursuit of the objective of general deterrence, impose a harsher sentence in order to send a message with a view to deterring others, the offender must still deserve that sentence: R. v. Paré, 2011 QCCA 2047; G. Renaud, The Sentencing Code of Canada: Principles and Objectives (2009), at para. 3.13. If a judge fails to individualize a sentence and to consider the relevant mitigating factors while placing undue emphasis on the circumstances of the offence and the objectives of denunciation and deterrence, all that is done is to punish the crime: R. v. R. (M.), 2010 QCCA 16, 73 C.R. (6th) 136.
[130] Whereas the gravity of the offence concerns the harm caused by the offender to the victim as well as to society and its values, the other aspect of the principle of proportionality involves factors that relate to the offender’s moral culpability:
The “degree of responsibility of the offender” as used in s. 718.1 certainly includes the mens rea level of intent, recklessness or wilful blindness associated with the actus reus of the crime committed. For this assessment, courts are able to draw extensively on criminal justice principles. The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moral culpability. However, the reference in s. 718.1 is not simply to the “mens rea degree of responsibility of the offender” at the time of commission of the crime. Parliament evidently intended “degree of responsibility of the offender” to include other factors affecting culpability. These might relate, for example, to the offender’s personal circumstances, mental capacity or motive for committing the crime. Where else does the Code provide for an offender’s degree of responsibility generally to be taken into account? Here, too, the answer takes us to s. 718.2.
[22] Finally in R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31 LeBel J. made the following comments when considering the issue of maximum sentences commencing at paragraph 17:
(1) General Sentencing Principles
Determining the Appropriate Sentence
[17] Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’s competence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1 Cr. C.; R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46, at para. 22; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, at para. 82). To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code:
‑ the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s. 718 Cr. C.) (see Appendix);
‑ the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C.); and
‑ the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr. C.).
(2) Maximum Sentences and Cheddesingh
[18] This individualized sentencing process is part of a system in which Parliament has established a very broad range of sentences that can in some cases extend from a suspended sentence to life imprisonment. The Criminal Code provides for a maximum sentence for each offence. However, it seems that the maximum sentence is not always imposed where it could or should be, as judges are influenced by an idea or viewpoint to the effect that maximum sentences should be reserved for the worst cases involving the worst circumstances and the worst criminals. As can be seen in the case at bar, the influence of this notion is such that it sometimes leads judges to write horror stories that are always worse than the cases before them. As a result, maximum sentences become almost theoretical:
In the end the difficulty with maximums is that they may be seen as almost theoretical rather than as an indication of how seriously an offence is to be treated in the “ordinary” case.
(T. W. Ferris, Sentencing: Practical Approaches (2005), at p. 292)
[21] Even where a maximum sentence is imposed, therefore, regard must be had to the trial judge’s discretion, the individualized nature of sentencing and the normative principles set out by Parliament in ss. 718, 718.1 and 718.2 Cr. C. There is still a place in criminal law for maximum sentences in appropriate circumstances.
[22] Thus, the maximum sentence cannot be reserved for the abstract case of the worst crime committed in the worst circumstances. The trial judge’s decision will continue to be dictated by the fundamental principle that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1 Cr. C.). Proportionality will be achieved by means of a “complicated calculus” whose elements the trier of fact understands better than anyone. The trial judge’s position in the sentencing process justifies the respect owed to the reasoned exercise of his or her discretion and the deferential approach that appellate courts should take in such matters (see Manson, at p. 86). As is noted in one commentary on sentencing principles:
[translation] [The] objectives of denunciation, deterrence, separation from society, rehabilitation, reparations and retribution are all quite general, and there is no precise standard that can be applied to rank them. At first glance, this is desirable, since the sentencing process is fundamentally an individualized one in that sentences will necessarily vary from one offender to another in light of the particular emphasis that will be placed on one or the other of the objectives in order to arrive at the appropriate sentence, having regard to all the circumstances, in each case.
The Offender
David Gregory
[23] I will deal with David Gregory first.
[24] He was convicted of being in possession of property the value of which exceeded $5,000. The property was obtained as a result of the commission of an indictable offence. It was this property that he allowed Richard Gamble to drive and it was this property that was used in the high speed chase that resulted in the death of Ashley Lerno.
[25] Mr. Gregory is 36 years of age. He is the middle of 5 siblings. He was born and raised in Brantford. He told the author of the pre-sentence report that his mother physically abused him. According to Mr. Gregory he told his school teacher about the abuse. He claimed that neither the Children’s Aid nor the police were notified. He left home at age 16.
[26] Mr. Gregory has three children with two women. His eldest children are 12 and 14. He has not seen his two oldest children since he was charged with the offence in this case.
[27] Mr. Gregory has a child who is almost one year old. He claims to maintain a positive relationship with the mother of this child, Ms. Thouless. Ms. Thouless stated that she and Mr. Gregory are working past their issues. She has multiple sclerosis. He comes to her house daily to see their daughter.
[28] Mr. Gregory has a relationship with both of his parents and his sister. He was diagnosed with ADD at a young age. He was on Ritalin when he was younger but un-medicated since his teen years. He quit school at age 18.
[29] Mr. Gregory states that he is receiving ODSP for mental health issues. He has mood swings and has found it difficult to keep employment in the past. He was diagnosed with Bi-Polar disorder by his family physician. Dr. Rahman, who last saw him in June 2014, has not prescribed any medications since his refills ran out in that year. When he last saw Mr. Gregory, Mr. Gregory did not request any refills for his medication. Mr. Gregory has not met with any psychiatrist recently.
[30] Mr. Gregory presented to the author of the Pre-Sentence Report (PSR) with emotional difficulties when discussing the incident as well as the fact that his involvement in the offence resulted in another person’s death. The outcome has affected his relationship with his children and he reports that he has memory loss. However, he has not sought any medical attention.
Aggravating Circumstances
Criminal Record
[31] Mr. Gregory has a lengthy criminal record that dates back to 1993 as a youth. He has 14 prior criminal dispositions as an adult. What is very concerning to me is the comment by the author of the PSR, Ms. Butler, that she assessed Mr. Gregory as having limited problem solving skills. She also stated that he minimizes responsibility for his behaviour. His response to prior periods of community supervision has been negative with multiple failures to comply and his current charge that he was convicted of occurred while he was on Probation.
[32] The PSR recommendations, however, point out that community supervision is recommended, despite poor past performance.
Mitigating Circumstances
[33] Mr. Gregory does have a relationship with the mother of his young child and he sees that child regularly. That relationship is a factor that I do consider as a positive step that may motivate Mr. Gregory to accept responsibility for his behaviours and move the needle toward the possibility of rehabilitation if not for himself but for his child.
Circumstances neither Aggravating or Mitigating
[34] He did not plead guilty and does not get the benefit of that consideration to reduce any period of incarceration.
[35] He expressed regret that his participation in the criminal activity for which he was found guilty contributed to some ones death.
Sentence
[36] I agree with the submissions of the Crown as to the period of incarceration for Mr. Gregory. That position was also characterized by counsel for Mr. Gregory as one that is fair and toward the more lenient side.
[37] Mr. Gregory is sentenced to 4 months incarceration with one month credit for pre-trial custody.
[38] There shall be a DNA Order.
[39] He shall present himself for DNA testing.
[40] He shall be placed on probation following his release for a period of 1 year.
[41] He shall be prohibited from associating with Mr. Gamble and Mr. Tatlock.
[42] He shall be prohibited from associating with anyone with a criminal record with the exception of family members and for the purpose of his employment
Richard Gamble
[43] Richard Gamble has been convicted of the offences more particularly set out earlier in these reasons. They include:
Criminal Negligence causing Death S.220 C.C.
Fail to Stop at an Accident causing Death S.252(1.3) C.C.
Operate Disqualified S.259(4) C.C.
Fail to Stop for Police causing Bodily Harm/Death S.252(1.3) C.C.
Richard Gamble’s Background
[44] Richard Gamble will be 51 years old on November 16th. He has 6 siblings, 5 brothers and a sister. His father died in 1985. He does have a relationship with his mother, his sister and one brother. He told the author of his PSR that he does not have contact with his other brothers. He would not get into details as to why he is estranged from his siblings.
[45] Although he states that he is close with is mother, I have doubts about whether his mother can be a positive resource in his life. She told the author of the PSR that all of her children are close and that they have always been there for each other. That is inconsistent with Richard Gamble’s representations of his relationship with his family. She also told the author of the PSR that:
"You are sentencing an innocent man" and added that the best part is "them cops are going to trial in March and that's a good thing." She explained that she is aware that a woman lost her daughter during the commission of the offence; however, she added that she has also lost her eldest son who was always there to assist her.
[46] Mr. Gamble was married in 1993. He has two children of that marriage an 18 year old son and a 16 year old daughter. He advised that prior to his involvement in the current offences before the Court they were all residing at the trailer park and that he shared a good relationship with his wife and children. Mr. Gamble has not spoken with his children in a year. He also separated in 2015/2016 as a result of his involvement in the offences currently before the Court.
[47] Richard Gamble had a learning disability. He obtained a General Equivalency Diploma while he was incarcerated. He was in and out of jail for many years and when he was out he worked periodically in the construction field either through a Mr. Valleta or his brother Brian Gamble.
[48] Richard Gamble told the author of the PSR that he did not have a social network. He described himself as a loner. Although Mr. Gamble stated that he does not have any mental illness, he saw a psychiatrist on two occasions in an effort to submit an application to the Ontario Disability Support Plan in order to obtain a disability pension for mental health issues.
Aggravating and Mitigating Circumstances
Aggravating
Criminal Record
[49] Richard Gamble has an extensive criminal record that spans 34 years and dates back to 1982. It consists of some 80 convictions.
[50] His record includes but is not limited to:
Five (5) convictions of Driving While Ability Impaired;
Four (4) convictions of Dangerous Operation of a Motor Vehicle;
Eleven (11) convictions of Driving While Disqualified;
[51] He has, at least, 3 prior convictions incidental to dangerous, careless driving, impaired driving, and for failing to stop for police. One previous conviction for failing to stop at the scene of an accident was in 1999.
[52] He has been convicted on five separate occasions for failing to comply with his Probation Order.
[53] He was a Parole violator in 1997 and a Statutory Release Violator in 2003.
[54] In the words of the Probation Officer, in his assessment, that was contained in the pre-sentence report:
“He has shown a blatant disregard for Court Orders. He has continued to reoffend on a consistent basis following his releases from custody. For the most part, previous periods of community supervision have not been favorable.
Conduct During the Commission of the Offences
[55] The events that led to the collision that resulted in the death of Ashley Lerno started out as a criminal enterprise. Richard Gamble set out with at least one member of his “crew” in order to secure tobacco for illegal sale.
[56] Upon approaching a ride program, Richard Gamble’s conduct on October 10, 2014 was purposeful and calculated to achieve one thing: evade police and avoid the consequences of his actions. He drove the Chevrolet Pickup in a manner that placed many people at risk of harm or death.
[57] He demonstrated a complete lack of insight and a reckless disregard to any consequences of his actions while he was fleeing police. That reckless disregard for life resulted in the tragic taking of the young life of Ashely Lerno.
[58] Richard Gamble drove at speeds that ranged from 180 km/h in 80 km/h zones and in excess of 80 km/h in 40 km/h zones.
[59] He ran through a number of stop signs and a red light while traveling in excess of 80 km/h.
[60] After the collision, he knew that the occupants of the car he collided with were seriously hurt. He told one of the arresting officers that he was aware of that fact. However, in spite of that knowledge he made the cowardly choice to flee the collision scene, once again, to avoid consequences of his actions. This only ended when he was crouched down in a fetal like position in the corner of someone’s backyard. By this time he had no place to go. He was facing a dog from the police canine division and a number of police officers. The words he uttered at that point in time were: “you got me”.
[61] Richard Gamble has shown no remorse. The evidence at trial was that he was asked how he was doing by one of the officers after his arrest. His response:
“Not good, I killed a fuckin kid”.
[62] I find that comment was a disgusting and cold expression of disrespect to 18 year old Ashley Lerno, whose life was in peril at that time.
Mitigating Circumstances
[63] As required to do by s. 718 of the Criminal Code, I must balance the aggravating circumstances with the mitigating circumstances. Despite searching the record, the pre- sentence report and hearing the submissions of counsel today. I could not find any mitigating circumstances.
Crown’s Position
[64] In light of the aggravating circumstances that also include the devastating impact on the victims, the following sentience is appropriate:
Driving while disqualified 2 years’ incarceration
Criminal Negligence Causing Death 10 to 12 years’ incarceration consecutive to the above
Flight from Police Causing Death 8 to 10 years’ incarceration concurrent to Criminal Negligence causing death
Failure to stop at accident 2 years’ incarceration consecutive
[65] The above would result in a period of incarceration totalling 14 to 16 years. Factoring in restraint and totality, the global submission is 12 to 14 years less pre-trial custody of 2 years. The total would result in 12 to 15 years from today.
Position of the Defence
[66] The Defence submits that Richard Gamble should be given a sentence more in line with the numerous sentences set out in the Crown’s Brief of Authorities. Those cases show a range of between 8 to 10 years for Criminal Negligence Causing Death.
[67] The Defence does not take objection to the ancillary orders requested by the Crown:
DNA for all offences(all secondary designated)
Criminal Code driving prohibition for 10 to 15 years consecutive to prison sentence.
Analysis and Sentence
[68] The offence of Criminal Negligence causing death has as a maximum sentence life imprisonment.
[69] The sentence that I am imposing today is one that I view as tailored to the specifics of this case. As noted by the Supreme Court of Canada in the above mentioned cases and often cited in subsequent cases to follow, the offence of Criminal Negligence Causing Death is uniquely case specifics and does not usually lend itself to the consideration of appropriate ranges. Although ranges within similar fact situations are a factor to consider, the case specific analysis is most significant.
[70] I am guided by the sentencing principles set out in the Criminal Code and as they have been commented on in multiple cases included those cited to me today.
[71] This sentence reflects the unique circumstances of this case:
The reckless disregard for the lives of the persons in the vehicle Richard Gamble knew were seriously injured.
The length of his criminal record with multiple convictions for offences that highlight his disregard for other people and his almost contemptuous disregard for the law and persons in authority.
The complete lack of regard for court orders as demonstrated by the numerous convictions for non-compliance.
The fact that Richard Gamble, despite 80 convictions, has not been deterred from his criminal activity.
[72] In my view the principles of denunciation and deterrence both specific and general must be a priority in this case. The public needs to be protected from Richard Gamble. He is a person who will simply continue to act in a manner that will be to his own benefit regardless of the consequences to others.
[73] In many of the cases cited by both Crown and Defence, the circumstances were not identical to this case. In many cases the accused pled guilty and saved the victims and the administration of justice from a lengthy trial.
[74] In many of the cases the accused showed remorse. That is an element that goes to the chance of rehabilitation. In this case Richard Gamble showed no remorse.
[75] I do not agree with counsel for Richard Gamble that there is a spark of hope for rehabilitation for Mr. Gamble. He has demonstrated that he used resources in prison to stop drinking alcohol. Mr. Gamble told the PSR author that he changed from drinking to taking marijuana. He now seeks to get medical marijuana without demonstrating any illness to justify this use. I do not see that his claim of not drinking alcohol represents any spark to possible rehabilitation.
[76] Richard Gamble you are sentenced to the following:
Drive while disqualified – 2 years
Criminal Negligence causing death – 12 years consecutive to the above
Flight from Police causing death - 10 years concurrent
Fail to stop at accident - 2 years consecutive
The total period of incarceration is 16 years with 3 years credit for pretrial custody. The global period of incarceration is 13 years from today.
[77] Ancillary Order:
DNA Order for all offence
Criminal Code driving prohibition for 15 years consecutive to prison sentence.
Richard Gamble shall not associate with persons with criminal records
Richard Gamble shall not associate with David Gregory and Mr. Tatlock.
Released: October 11, 2016 ________________________
Harper, J.